This presentation discusses recent cases involving the ADAAA definition of disability, as well as family and medical leave cases involving the ADA.

1. Understanding the New Definition
of “Disability” in the ADA
Amendments
Curtis Edmonds, JD, MHRM

2. About This Training
• Disability accommodations, particularly with regard to leave,
can result in a substantial burden for employers.
• Understanding whether or not a given employee is entitled to
the protection of the ADA is key to avoiding litigation on
accommodation issues.
• Human resources managers need to understand not only the
changes to the ADA, but how courts are viewing individual cases
involving the definition of disability.

3. Learning Objectives
• Overview of ADA definition of disability
• Learn about the circumstances that led to the passage of the
ADAAA
• Understanding the nuances of the ADAAA redefinition of
disability
• Analysis of how courts are applying the new ADAAA definition
• Developing strategies for analyzing accommodation requests
• Understanding the intersection between ADA and FMLA leave
requests

4. Defining Disability
• Everyone agrees that society has some responsibility to people
who are born with a severe disability or acquire one over the
course of their life.
• However, there is no agreement as to how we define what,
exactly, a disability is or is not.
• We can all agree that certain severe disabilities, like blindness or
paralysis, are disabilities, but there are any number of
conditions where determining whether someone has a disability
is arguable.

5. You Make The Call
• V.H. worked as a claims administrator for an insurance
company. She experiences depression and anxiety, as well as
migraine headaches. She has taken medical leave due to a lower
back injury. She is requesting additional leave and
accommodations. She has provided a doctor’s note stating that
she cannot work more than 40 hours a week.
• Does V.H. have a disability?

6. Approaches to Defining Disability
• The Social Security Administration defines “disability” as
being unable to do any job in the national economy. Under this
standard, V.H. does not have a disability, because her doctor has
said she can continue to work.
• The Department of Veterans Affairs defines “disability”
through a complex ratings process that allows people to claim
partial disability benefits on a percentage basis. Assuming V.H.
is a veteran, she may be able to show she has a partial disability
in one or more areas.

7. ADAApproach to Disability
• The SSA and VA approaches to disability are based on the
“medical model,” looking only at disability through the lens of
health care.
• Both the SSA and VA approaches to disability pre-date the
independent living movement of the 1960’s and 1970’s that
changed opinions about disability.
• The ADA definition of disability is based off of a “civil rights”
model that focuses on an individual’s abilities.

8. ADA Definition of Disability
• (1) Disability: The term “disability” means, with respect to an
individual—
• (A) a physical or mental impairment that substantially limits
one or more major life activities of such individual;
• (B) a record of such an impairment; or
• (C) being regarded as having such an impairment

9. Elements of the ADA Definition
• Impairment – This is any sort of injury or disorder to any
bodily system, defined broadly; an impairment is not by itself a
disability
• Major Life Activity – Not defined in the original ADA;
became a cause of contention in subsequent litigation
• Substantially Limiting – Generally speaking, this is a
measure of how the disability impacts the individual’s life
• Regarded As – People who are “regarded as” do not have a
disability but can allege that they were treated as though they
did

10. Analyzing ADA Definition Issues
• It is always important to remember that the ADA definition is
an individualized inquiry; as people have different levels of
impairment and different skills and abilities, you have to make a
determination based on what the individual can and cannot do
• It is also important to realize that the ADA only applies to
people who meet the “disability” definition; people who
do NOT meet the “disability” definition are NOT entitled to
employment accommodation and CANNOT sue for
discrimination under the ADA
• Also, the ADA is a federal law; state laws are often more
lenient in terms of disability status

11. Initial Issues with the ADA Definition
• The Equal Opportunity Employment Commission issued
regulations in the early 1990’s which were designed to clarify
issues left unanswered by Congress in passing the ADA:
• The EEOC said that individuals should be evaluated without regard to
“mitigating measures” like hearing aids, insulin pumps, and other
devices that can lessen the impact of a disability.
• The EEOC defined “major life activity” to include basic activities like
walking, talking, seeing, hearing and speaking, but said that the list was
not comprehensive

12. The ADA Backlash
• As courts began to hear ADA cases in the 1990’s, employers
were very effective in winning ADA cases by claiming that the
plaintiff did not have a disability.
• Courts were sharply divided over whether “major life activities”
like sleeping or eating should or should not be considered to be
part of the ADA
• The Supreme Court, in the Sutton case, threw out the
“mitigating measures” regulation, and limited major life
activities in the Toyota case.

13. Passage of the ADAAA
• The Americans with Disabilities Act Amendments Act
(“ADAAA”) was passed by Congress and signed by President
George W. Bush in 2008.
• The ADAAA was the result of a compromise reached after
thirteen weeks of negotiations between representatives of the
business and disabilities communities over its provisions.
• The goal of the ADAAA was to bring the class of individuals
covered under the ADA into congruence with the original
expectations of coverage.

14. ADAAA Modifications
• The ADAAA did not make any changes to the ADA definition of
disability. The ADAAA focused on changing the interpretation of the
statute, as follows:
• The ADAAA made it clear that “mitigating measures” should not be
considered in determining disability (except for eyeglasses and contact
lenses).
• The ADAAA made it clear that minor impairments could trigger the “regarded
as” clause.
• The ADAAA specifically counters the Supreme Court decisions in Sutton and
Toyota.
• The ADAAA substantially revised the “major life activity” requirement.
• The ADAAA informed courts that they should construe the definition of
disability liberally.

15. Major Life Activity Categories
• As a result of the ADAAA and its implementing regulations, the term
“major life activity” is now defined more clearly than before.
• Plaintiffs only need to show that they have a limitation in one activity.
• There are now roughly six different categories of “major life activities.” The
first three are more traditional in scope:
• Statutory major life activities, as listed in the text of the ADAAA, which are “caring
for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending, speaking, breathing, learning, reading, concentrating,
thinking, communicating, and working.”
• Regulatory major life activities, as listed in the text of the EEOC regulations but not
specifically in the text of the ADAAA, which are sitting, reaching, and interacting with
others.
• Unlisted major life activities, which are not specifically listed in the ADAAA or the
EEOC regulations, have been recognized by some courts, such as climbing.

16. Bodily Functions
• The ADAAA also added “bodily functions” as a new sub-class of
activities:
• Statutory bodily functions, as listed in the text of the ADAAA, which
include the “operation of a major bodily function, including but not
limited to, functions of the immune system, normal cell growth,
digestive, bowel, bladder, neurological, brain, respiratory, circulatory,
endocrine, and reproductive functions.”
• Regulatory bodily functions, as listed in the EEOC regulations but not
specifically in the ADAAA, which include special sense organs and skin,
genitourinary, hemic, lymphatic, and musculoskeletal functions.

17. Predictable Assessments
• Finally, the EEOC regulations created a sixth category, called
“predictable assessments”:
• “Predictable assessment” impairments, as listed in the EEOC
regulations implementing the ADAAA, which the EEOC finds that it
“should easily be concluded that the following types of impairments
will, at a minimum, substantially limit the major life activities
indicated,” and which include deafness, blindness, intellectual
disability, partially or completely missing limbs, mobility impairments
requiring the use of a wheelchair, autism, cancer, cerebral palsy,
diabetes, epilepsy, Human Immunodeficiency Virus (HIV) infection,
multiple sclerosis, muscular dystrophy, major depressive disorder,
bipolar disorder, post-traumatic stress disorder, obsessive compulsive
disorder, and schizophrenia.

18. What Did All That Just Mean?
• It may appear, based on the complexity of those last three slides,
that Congress and the EEOC took a very simple analysis and
made it much more complicated.
• That’s because that’s more or less what they did.
• First of all, why did the law need to be more complicated?
• Congress is trying to make the ADA more comprehensive. It is trying to
draw a wider net to get more people within the law. The previous
“major life activity” rubric was problematic for people with
impairments like brain injuries, learning disabilities, arthritis, and
intellectual disabilities—people who were supposed to be covered by
the law, but didn’t fit into an obvious niche.

19. Disability as a Moving Target
• Secondly, the nature of disability changes over time.
• The ADA definition of “disability” actually dates back to the Vocational
Rehabilitation Act of 1973. In 1973, HIV infection was not yet prevalent,
so there was nothing in the “major life activity” rubric to cover it. It
wasn’t until the Supreme Court decided the issue in Bragdon that AIDS
and HIV infection was considered to be a disability.
• In 1990, the year the ADA was passed, the prevalence of autism in five-
year-old children in California was 6.2 children out of 10,000. By 2001,
the prevalence was 42.5 children out of 10,000. Including the “bodily
functions” language makes it easier to show that people with autism
come under the protection of the ADA.

20. Major Life Activity of Working
• Thirdly, Congress was trying to stop people from using the
major life activity of “working.”
• “Working” has been described as the “major life activity of last resort.”
• If you didn’t fit into any of the pre-ADAAA categories, you could always
argue (in an employment case) that you had a substantial limitation in
your ability to work.
• Claiming “working” as a major life activity was usually a mistake,
because if you were substantially limited in working, it likely meant that
you weren’t a “qualified person with a disability” and weren’t covered
by the ADA anyway.
• By broadening the base of major life activities, plaintiffs will be able to
use more accurate major life activities.

21. Does This Mean Everyone Has a Disability?
• No.
• Everyone does have an impairment.
• Unless you are very fortunate, you likely have some condition that
impacts some system of your body. Even professional athletes
frequently come down with strains and sprains that can be considered
to be an impairment.
• That impairment likely impacts a major life activity, because
there are so many more major life activities now.
• But employees still have to show that the impairment
substantially limits their major life activities.

22. Implications for HR
• It is now going to be much more difficult to dismiss
accommodation and leave requests out of hand because the
employee does not have a major life activity—and it’s not smart
to try.
• The ADAAA shifts the focus away from “major life activity” and
on to “substantial limitation.” Your analysis needs to focus not
so much on the nature of the disability as to what the individual
can and cannot do.
• The key to determining disability status will now, in most cases,
be the nature of the medical evidence of the disability that the
plaintiff can bring to bear.

23. Making the Call
• Remember the case of V.H., discussed at the beginning of this
training?
• V.H. clearly had impairments:
• Depression
• Anxiety
• Headaches
• Back Injury
• These clearly impact major life activities:
• Statutory: Thinking, concentrating
• Regulatory: Sitting
• Bodily Functions: Brain, musculoskeletal
• However, since her only actual limitation was not being able to work overtime,
the court in her case found that she was not substantially limited in any
activity and did not have a disability.

24. Pins and Needles
• C.S. works as a pharmacist in New York. He has an
unreasonable fear of needles. He was asked by his employer to
administer injections, and refused, and was fired.
• The unreasonable fear that C.S. experiences is an impairment.
• Under the pre-ADAAA rules, C.S. would likely not have been able to
show that a major life activity was impacted.
• Under the ADAAA, C.S. showed that he was limited in the bodily
function of neurological functioning.
• The court determined that C.S. was able to show that this was a
substantial limitation, and C.S. was determined to have a disability.

25. Cold Storage
• B.C. works in a cold-storage facility as a warehouse employee.
She has a medical condition that impacts her ability to control
her bladder.
• The medical condition is clearly an impairment.
• Initially, B.C. argued that she was limited in her ability to watch movies
and shop. This claim was rejected by a federal magistrate.
• B.C. was allowed to amend her complaint to argue that she was limited
in the bodily function of her urinary system. This argument was
successful, and B.C. was able to show that she had a disability.

26. Winners and Losers
• In 2017, I conducted a study of four years of ADA cases where
the employee with an alleged disability was unable to prove to a
federal judge that he or she did not have a disability.
• The purpose of this study was to determine whether or not there
was evidence for claims that the ADAAA was either ineffective in
helping people with disabilities, or hurt employers by allowing
people with non-severe disabilities to claim disability status.

27. Risk Factors
• In reading the cases, I analyzed four different “risk factors” that
were usually present in losing ADA claims:
• Did the plaintiff have an attorney? Plaintiffs who filed pro se, or
without an attorney, tended to lose cases.
• Did the plaintiff make a mistake in pleading? Plaintiffs who made
elementary mistakes, like forgetting to identify a major life activity, also
tended to lose cases.
• Did the judge make a mistake? While it is rare for judges to make
errors, sometimes judges applied pre-ADAAA precedents or made
other errors that caused plaintiffs to lose.
• Did the plaintiff file multiple claims? Often, plaintiffs will add frivolous
ADA claims together with other employment law claims.

28. Multiple Claims
• The most prevalent risk factor was filing multiple claims. For
example, a plaintiff might file a sexual harassment claim, and
add in several other employment law claims, including an ADA
claim.
• The logical explanation is that plaintiff’s attorneys will just
regularly file every conceivable complaint possible, even ones
that aren’t very good, because you only get one shot at an
employer, and you miss all the shots you don’t take.

29. Pleading Mistakes
• Often times, attorneys (or plaintiffs acting like attorneys) who
do not have specific knowledge of the ADA make very basic
mistakes in pleading cases.
• Not identifying the plaintiff’s impairment
• Not identifying the plaintiff’s major life activity
• Not providing medical evidence of the plaintiff’s impairment
• These mistakes are usually fatal to a plaintiff’s claim, no matter
what their disability is.

30. Pro Se Plaintiffs
• One odd finding of the study was that pro-se plaintiffs are only
slightly more likely to make fatal mistakes than plaintiffs with
attorneys.

31. Outcomes
• Of the 219 cases in the sample, 74 were decided on motions to
dismiss, with the remaining 145 decided on motions for
summary judgment. The most common result was that the
plaintiff did not provide enough evidence of their disability to
defeat the motion to dismiss or summary judgment, which
occurred in 71.6 percent of cases. The next most common
reason was the plaintiff’s inability to identify a major life
activity, which occurred in 21 percent of all cases. Finally, the
plaintiff’s inability to identify an impairment occurred in 6.8
percent of all cases.

32. More Implications for HR
• One interesting aspect of the risk factors analysis in the survey
is that all four risk factors are out of the control of defendants.
Defendant employers have no say one way or another in
whether a plaintiff decides to hire a lawyer, whether the plaintiff
files on multiple causes of action, or makes pleading mistakes
such as failing to identify a major life activity. Defendants may
be the beneficiaries of mistaken decisions by judges, but have no
control over the judge’s decision.

33. Structural Norms
• One unintended consequence of the ADAAA is that HR
professionals may be less willing to provide accommodations
than before.
• “The expanded definition of disability means that many more plaintiffs
will survive the hurdle of proving they have a disability; thus, we can
expect to continue to see more cases addressing the issue of whether an
employee is qualified in light of the structural norms of the workplace.
If the above cases are indicative of a trend, we should expect to see
more and more plaintiffs who need variations of the structural norms in
the workplace losing their ADA claims.” – Prof. Nicole Buonocore
Porter, The New ADA Backlash, Tennessee Law Review (2014).

34. Dealing with Structural Norms
• Human resources professionals may face issues regarding
complaints from other employees when people with disabilities
get additional time off or other accommodations, workplace
environments where stigma discourages employees with
disabilities from asking for accommodations, and employees
without disabilities asking for accommodations to which they
are not entitled. However, these are issues that human resource
professionals should recognize and be trained to deal with.

35. Did the ADAAA Go To Far?
• Before passage of the ADAAA, some commentators reasoned that the
floodgates of litigation would open in response to the new law, and
that courts would be flooded with cases.
• However, that concern seems not to have materialized, with only a couple of
hundred losing ADA cases filed in the four-year period of the study.
• Other commentators concluded that the ADAAA “opened Pandora’s
Box,” and thereby loosed potential claims from people with
impairments such as “high cholesterol, back and knee strains, colds,
the flu, poison ivy, sprained ankles, stomach aches, the occasional
headache, a toothache, and a myriad of other minor medical
conditions that go far beyond any reasonable concept of disability.”
Amelia Michele Joiner, The ADAAA: Opening the Floodgates, San
Diego Law Review, (2010)

36. Evaluating the ADAAA
• While plaintiffs have argued that the ADAAA covers impairments such as
headaches, the common cold, dental problems, common allergies, nose
bleeds, sprained ankles, and influenza, courts have consistently found that
such impairments are not covered under the ADA definition of disability.
• If we look solely at the ADAAA as an instrumental tool to increase the
likelihood of a given plaintiff to meet the threshold of disability status, it is
clear that at least some progress has been made. If we look at the ADAAA
as a screening tool to keep individuals with impairments that do not rise to
the level of what we generally think of as a disability, then the case law
seems to indicate that this aspect of the ADAAA is working well, despite
the dire predictions of the critics. If we see the ADAAA as a means of
increasing access to the courts for everyone, the complexity of the law is at
least arguably keeping some litigants out of the ADA protective class due to
failure to plead properly.

37. Dealing with ADAAA Issues and
FMLA Claims

38. ADAAA and FMLA Intersection
• Since ADAAA issues often come up in cases involving medical
leave and the Family and Medical Leave Act, this section
discusses several cases involving the intersection between both
laws.

39. Carmona v. Southwest Airlines
• This is a 2010 case arising from the Fifth Circuit Court of
Appeals in New Orleans.
• The plaintiff was a flight attendant with Southwest. He has
psoriasis, a skin disorder. He eventually developed a form of
arthritis related to his psoriasis.
• Psoriasis “flares up” from time to time, causing the plaintiff to
experience pain in walking. During these flare-ups, he would
frequently use FMLA leave.
• As a flight attendant, the plaintiff’s leave was governed by a
collective bargaining agreement.

40. Carmona v. SWA – Termination
• By 2005, Carmona had exhausted his FMLA leave. He had also
accumulated a significant amount of “points’ on the collective
bargaining system. Southwest could terminate him if he
collected enough points based on absences.
• In June 2005, Carmona sprained his thumb and could not
return to work. This brought his level of “points” high enough to
the point where he was automatically terminated.

41. Camona v. SWA – Disability Status
• The court used the pre-ADAAA analysis, because the plaintiff’s
last injury took place before the passage of the ADAAA. It found
that Carmona’s arthritis was a substantial limitation on his
ability to walk, and that he therefore had a disability.
• In the ADAAA analysis, he would also have been able to argue
that his psoriasis affected his bodily functions as well.
• The court did not address the injury to Carmona’s thumb,
although it would not be likely to trigger ADAAA coverage
independently.

42. Carmona v. SWA – Leave Status
• The court found further that Carmona was “qualified” for his job,
despite his use of leave, in that he was consistently able to stay within
his number of “points” for seven years before he was discharged.
• Furthermore, the court found that since Southwest had let other
employees work with more than 12 points, that it could not fire
Carmona for going over 12 points.
• Carmona was further able to show that his supervisors were irritated
by his use of leave—even though he was entitled to leave under the
FMLA.
• The court reinstated a jury verdict in favor of Carmona, but did not
force Southwest to take him back as an employee.

43. Lewis v. Union City
• This is a 2017 case arising out of the Eleventh Circuit Court of
Appeals in Atlanta.
• The plaintiff in this case, Jacqueline Lewis, is a police detective
in Union City, Georgia. She had experienced a minor heart
attack in 2009, but was able to return to work.
• In 2010, officers with the Union City Police Department were
issued TASER devices. This is a non-lethal weapon that “stuns”
the person on whom it is used with an electrical shock.
• As part of the training, the UCPD decided to use the TASER to
shock all of its employees who carried one, so they would know
how it felt to be on the receiving end.

44. Lewis v. Union City - Termination
• Detective Lewis asked to be excused from TASER training, as
she thought it might put an undue strain on her heart.
• She was immediately placed on administrative leave, and was
offered FMLA leave, which she did not elect to take.
• One month later, Detective Lewis was fired. The Assistant Chief
who fired her never asked his HR director for guidance.
• The reason why Detective Lewis was fired was her failure to fill
out the FMLA leave paperwork, and her exhaustion of other
forms of leave.

45. Lewis v. Union City – Disability Status
• The 11th Circuit found that Detective Lewis did not meet the
ADAAA definition of disability, because there was no evidence
that her heart condition was a substantial limitation on her
activities.
• The court did not address the issue of whether getting shot with a
TASER is a major life activity.
• The court however did find that Detective Lewis was regarded as
having a disability by the UCPD.
• “An employer that takes an adverse action because it fears the
consequences of an employee's medical condition has regarded
that employee as disabled.”

46. Lewis v. Union City - Qualification
• The court did find that Detective Lewis was qualified to do the
essential functions of her job as a police detective—and that
getting shot by a TASER was NOT an essential function of that
job.

47. Lewis v. Union City - Leave
• The court determined that Lewis’s firing for failure to turn in
FMLA paperwork was discriminatory, as the UCPD had never
informed her that she would be fired if she did not apply for
leave, and there was no policy informing her that she would be
fired if she did not apply for leave.
• The court determined that the department had decided to fire
her, and that a jury could find that the leave issue was a pretext.

48. Capps v. Mondelez Global
• This case arose from the 3rd Circuit Court of Appeals in
Philadelphia, in 2017.
• Fredrick Capps was a mixer for a Nabisco plant outside of
Philadelphia. He has avascular necrosis, a circulatory disease
which is causing the slow death of his bone tissue. He has had
two hip replacements and arthritis, and experiences severe
flare-ups, which cause him severe pain.
• He had received an accommodation from his employer of taking
intermittent FMLA leave to deal with the pain of flare-ups.

49. Capps v. Mondelez - Misconduct
• Capps missed work on Monday, February 11 and Tuesday,
February 12, 2013, with leg pain, but returned to work on the
13th.
• On the 14th, he called in sick again, but this time went to a local
pub, where he drank three beers and three shots. He was
arrested later that evening and jailed overnight. He called in sick
for his shift on the 15th, claiming leg pain.
• Mondelez subsequently discovered that Capps had requested
FMLA leave for two subsequent court appearances in June and
October 2013.

50. Capps v. Mondelez - Termination
• Once Mondelez figured out that Capps was using FMLA leave
for court dates, they terminated him in March 2014.
• Capps filed a grievance, and Mondelez offered him
reinstatement without back pay. Capps refused, and filed suit,
claiming that he had been fired in retaliation for using his
FMLA leave.

51. Capps v. Mondelez - Accommodation
• The court here assumed that Capps had a disability (which he
arguably does) and that he is qualified for his job (which he
arguably is), but did not rule on either issue.
• The court found that Mondelez did accommodate Capps by
allowing him to take intermittent FMLA leave to deal with his
pain issues, and that the FMLA leave requests were also ADA
accommodation requests.

52. Capps v. Mondelez – Leave
• Furthermore, the court found that Mondelez did not retaliate
against Capps by firing him for taking FMLA leave, and that its
decision to terminate him was a legitimate non-discriminatory
decision based on Capps’s misuse of FMLA leave.

53. Contact Me
• Curtis Edmonds
• curtisedmondsnj@gmail.com
• (908) 938-7747